Plaintiff Suzan Drazen represented a TCPA class action against Godaddy.com, LLC (GoDaddy) for its use of an alleged prohibited automatic telephone dialing system (ATDS) to conduct telemarketing via texts for a period of about two years. After GoDaddy reached a settlement with the plaintiffs, Drazen filed a motion to approve the settlement agreement and define the class of people entitled to compensation. The settlement agreement defined the class to include any individual who received even a single text message or phone call on their cellphone from GoDaddy in the specified period.
The district court ultimately approved the settlement but, following the decision in Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019), held that those class members who had received only a single text message lacked standing in the Eleventh Circuit. In Salcedo, the Eleventh Circuit held that receipt of a single unwanted text message did not create a concrete injury sufficient for Article III standing.
On appeal, an Eleventh Circuit panel of Judges Wilson, Branch, and Tjoflat dismissed the case for lack of jurisdiction, holding “that the class definition does not meet Article III standing requirements.” Drazen then moved for a rehearing en banc.
The en banc court reversed the panel. It explained that to show Article III standing, a plaintiff must demonstrate the existence of a “concrete” injury. One way that courts can determine whether an injury is “concrete” is by looking at laws enacted by Congress to address that injury. But Congress may not use “its lawmaking power to transform something that is not remotely harmful into something that is.” Therefore, courts must look to whether a harm addressed by Congress bears “a close relationship to the kind of harm” that the law traditionally has recognized.
Here, the court found that the same harm addressed by the TCPA is addressed by the common-law tort of “intrusion upon seclusion.” One element of intrusion upon seclusion is that the privacy invasion must be “highly offensive to a reasonable person.” GoDaddy argued that the harm from receiving one unwanted text message lacks a “close relationship” to the “highly offensive” harm required to prove a claim for intrusion upon seclusion. The court rejected this argument, and concluded that the TCPA and the tort of intrusion upon seclusion both address the same kind of harm, even if they do not address the same degree of harm. This approach followed the reasoning of the Seventh Circuit, which also focused on whether the harms share a relationship “in kind, not degree.” The Fourth, Fifth, Sixth, Ninth, and Tenth Circuits also look to the “types of harms protected at common law, not the precise point at which those harms become actionable.” The Second and Third Circuits similarly focus on the “character” of the harm. The court concluded by observing that a single unwanted text message may not be “highly offensive to the ordinary reasonable man,” but that an unwanted text is offensive to some degree, and that “the Constitution empowers Congress to decide what degree of harm is enough so long as that harm is similar in kind to a traditional harm.” Therefore, the court held that the receipt of a single unwanted text message causes a concrete injury to justify standing under the TCPA.
The Drazen decision will drastically affect TCPA litigation in the Eleventh Circuit. First, until now, the Eleventh Circuit was an outlier in failing to recognize TCPA standing for a single text, call, or fax. This meant that defendants sued for TCPA violations in state court for texts, for example, were being remanded by the district courts for lack of standing. This decision will facilitate removal to federal court for defendants in Florida, Georgia, and Alabama. Second, the “unwanted” requirement for illegal calls or texts may still preclude standing on a class-wide basis, since whether a text is “unwanted” remains an individualized inquiry. Most commonly, the TCPA requires that “consent” for advertising include “prior express written consent.” Under the Federal Communications Commission’s definition, that also includes an obligation to make a specific disclosure that consent is not a condition of purchase. A common argument against class certification for TCPA claims revolves around the plaintiff’s inability to show concrete injury (i.e., standing) on a class-wide basis due to members’ consent to receive communication. The Drazen decision preserves that argument. Thus, the lowered requirement for Article III standing does not necessarily create liability; it merely brings the Eleventh Circuit in line with the majority view that a single unwanted text is enough.
Client Alert 2023-170
